Drizzt
Member
Canberra Times (Australia)
June 5, 2003 Thursday Final Edition
SECTION: A; Pg. 17
LENGTH: 820 words
HEADLINE: ACT's proposed Human Rights Act strikes the right balance;
Australia's first Bill of Rights legislation should be passed by the Legislative Assembly, say George Williams and Nick Hume
BODY:
THE ACT Bill of Rights Consultative Committee, in its report Towards an ACT Human Rights Act, has proposed a modest, but effective, Bill of Rights for the ACT.
Rather than entrenching a constitutional Bill of Rights in the ACT Self-Government Act, it finds that the Legislative Assembly should pass ordinary legislation called the Human Rights Act to protect a wide range of basic freedoms. This would give the Territory Australia's first Bill of Rights, while also ensuring that the instrument meets the needs of the community rather than confirming the fears of its critics.
A legitimate concern is that a Bill of Rights would shackle the ACT to a rigid United States-style Bill of Rights in which intransigent minorities (like the gun lobby) can misuse their "rights" to detract from the general welfare. A related fear is that such an instrument would give judges too much power in the allocation of public resources and in assigning social responsibility. Fortunately, the model proposed by the consultative committee meets both of these concerns.
Rather than being based on the 200-year-old United States Bill of Rights, the ACT Bill of Rights would be modelled upon the United Kingdom's Human Rights Act 1998. It would also include provisions from the Canadian Charter of Rights and Freedoms 1982 and the New Zealand Bill of Rights Act 1990. Each of these modern instruments has been successful in increasing the protection of and education about basic rights and is well supported by their respective community.
The consultative committee's proposal is that the Assembly protect rights taken from key international instruments to which Australia is already a party. These are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
The inclusion of economic, social and cultural rights, such as the right to education and the right to the highest attainable standard of health, makes the ACT proposal more expansive than the traditional list of civil and political rights. The consultative committee found that economic, social and cultural rights should be included as they are as integral to a worthwhile human life as "traditional" rights such as the right to vote.
None of the rights protected in the Human Rights Act, including the economic, social and cultural rights, would be absolute. They could be limited because of relevant "financial circumstances" or to the extent that this is "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom".
Similar economic, social and cultural rights have operated in South Africa for several years. There the courts have not interfered with rational decisions by government agencies.
The South African experience, as well as that of the United Kingdom, shows that a properly drafted Bill of Rights, like that proposed for the ACT, will not bring about a flood of litigation.
In any event, the ACT Human Rights Act would not enable courts to strike down laws passed by the Legislative Assembly. Courts would be directed to interpret legislation to be compatible with the protected rights. If this could not be achieved, in a device taken from the United Kingdom, the Supreme Court could make a "declaration of incompatibility".
This would direct the attention of the Attorney-General to the issue. He or she would then have six months in which to respond in the Legislative Assembly to the declaration. The law might be amended, or the response might be to do nothing. Overall, the process would engage the courts, the Assembly and the community in public "dialogue" about basic rights, while always acknowledging the supremacy of the elected legislature.
The Bill of Rights proposed by the ACT Consultative Committee is innovative and pragmatic. It would protect basic community rights while also overcoming the problems that have affected other proposals.
Judges would not have the last word.
The focus of the Bill on the capacity of the Assembly to protect rights in partnership with the people of the ACT is a welcome shift away from the normal concentration on the courts. Judges would have a role, but it would be limited to interpreting laws and identifying areas of incompatibility. They would not have the last word.
The ACT Human Rights Act should be passed by the Legislative Assembly. It strikes the right balance between protecting the rights of individuals and ensuring the needs of the wider community. If it is passed, the ACT will become a leader within Australia on issues of human rights. Attention might then turn again to the issue at the national level, where Australia remains the only Western nation without a Bill of Rights.
Professor George Williams is the director, and Nick Hume an intern, at the Gilbert and Tobin Centre of Public Law at the University of NSW.
June 5, 2003 Thursday Final Edition
SECTION: A; Pg. 17
LENGTH: 820 words
HEADLINE: ACT's proposed Human Rights Act strikes the right balance;
Australia's first Bill of Rights legislation should be passed by the Legislative Assembly, say George Williams and Nick Hume
BODY:
THE ACT Bill of Rights Consultative Committee, in its report Towards an ACT Human Rights Act, has proposed a modest, but effective, Bill of Rights for the ACT.
Rather than entrenching a constitutional Bill of Rights in the ACT Self-Government Act, it finds that the Legislative Assembly should pass ordinary legislation called the Human Rights Act to protect a wide range of basic freedoms. This would give the Territory Australia's first Bill of Rights, while also ensuring that the instrument meets the needs of the community rather than confirming the fears of its critics.
A legitimate concern is that a Bill of Rights would shackle the ACT to a rigid United States-style Bill of Rights in which intransigent minorities (like the gun lobby) can misuse their "rights" to detract from the general welfare. A related fear is that such an instrument would give judges too much power in the allocation of public resources and in assigning social responsibility. Fortunately, the model proposed by the consultative committee meets both of these concerns.
Rather than being based on the 200-year-old United States Bill of Rights, the ACT Bill of Rights would be modelled upon the United Kingdom's Human Rights Act 1998. It would also include provisions from the Canadian Charter of Rights and Freedoms 1982 and the New Zealand Bill of Rights Act 1990. Each of these modern instruments has been successful in increasing the protection of and education about basic rights and is well supported by their respective community.
The consultative committee's proposal is that the Assembly protect rights taken from key international instruments to which Australia is already a party. These are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
The inclusion of economic, social and cultural rights, such as the right to education and the right to the highest attainable standard of health, makes the ACT proposal more expansive than the traditional list of civil and political rights. The consultative committee found that economic, social and cultural rights should be included as they are as integral to a worthwhile human life as "traditional" rights such as the right to vote.
None of the rights protected in the Human Rights Act, including the economic, social and cultural rights, would be absolute. They could be limited because of relevant "financial circumstances" or to the extent that this is "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom".
Similar economic, social and cultural rights have operated in South Africa for several years. There the courts have not interfered with rational decisions by government agencies.
The South African experience, as well as that of the United Kingdom, shows that a properly drafted Bill of Rights, like that proposed for the ACT, will not bring about a flood of litigation.
In any event, the ACT Human Rights Act would not enable courts to strike down laws passed by the Legislative Assembly. Courts would be directed to interpret legislation to be compatible with the protected rights. If this could not be achieved, in a device taken from the United Kingdom, the Supreme Court could make a "declaration of incompatibility".
This would direct the attention of the Attorney-General to the issue. He or she would then have six months in which to respond in the Legislative Assembly to the declaration. The law might be amended, or the response might be to do nothing. Overall, the process would engage the courts, the Assembly and the community in public "dialogue" about basic rights, while always acknowledging the supremacy of the elected legislature.
The Bill of Rights proposed by the ACT Consultative Committee is innovative and pragmatic. It would protect basic community rights while also overcoming the problems that have affected other proposals.
Judges would not have the last word.
The focus of the Bill on the capacity of the Assembly to protect rights in partnership with the people of the ACT is a welcome shift away from the normal concentration on the courts. Judges would have a role, but it would be limited to interpreting laws and identifying areas of incompatibility. They would not have the last word.
The ACT Human Rights Act should be passed by the Legislative Assembly. It strikes the right balance between protecting the rights of individuals and ensuring the needs of the wider community. If it is passed, the ACT will become a leader within Australia on issues of human rights. Attention might then turn again to the issue at the national level, where Australia remains the only Western nation without a Bill of Rights.
Professor George Williams is the director, and Nick Hume an intern, at the Gilbert and Tobin Centre of Public Law at the University of NSW.
